MUMBAI: Can an investor set off gains from Bitcoins against losses from trading unregulated commodities or stocks intraday while computing income tax liabilities for the year? Most tax experts seem to think so. Several investors have reached out to the income tax department and are now planning to define their gains or losses from Bitcoins as speculative business income. They would then set it off against losses or gains incurred from other speculative businesses to reduce or square off their tax liabilities.
ET was the first to report last month that mega bitcoin gains for investors could attract about 30 per cent tax. Soon after, the income tax department launched searches on top Bitcoin exchanges, including Zebpay, Unocoin and CoinSecure on December 13. The income tax department has issued about 5 lakh notices to Bitcoin and cryptocurrency investors and sought answers to 28 pointed questions.
ET spoke to Bitcoin investors, tax officials and advisors helping investors. Many of these investors are planning to use their other speculative businesses to reduce the tax burden. "Transactions in cryptocurrencies are not settled by any physical delivery of an underlying asset. So, as per Section 45 (d) of I-T Act, the profit/loss (incurred due to trading in cryptocurrencies) could be treated as speculation business income," said Dilip Lakhani, a senior chartered accountant.
A Surat-based investor, for instance, now holds 4.4 bitcoins purchased on Indian exchanges at an average price of $15,000. The investor is filing a reply to the income tax department stating that he has made a loss of about Rs 5 lakh when he sold them in December. And he wants to set it against Rs 25 lakh earned through grey-market commodity trading.
Tax experts point out that such a set-off may be allowed as trading in Bitcoins and gains in the commodities grey market could be defined as speculative business income. "As per the Income Tax Act, legality or illegality of income may not be of any consequence for paying tax. So, speculative business income from one asset can theoretically be set off against losses made in any other asset," a senior official in the know told ET.
"The loss on trading in cryptocurrencies will be treated as speculation loss and cannot be adjusted against any other source of income except speculation income. The loss can be equated with Dabba trading in securities, where the settlement is done without physical delivery," said Lakhani.
Under current regulations, taxation on speculative business income is about 30 per cent. If any tax-payer regularly deals in a speculative asset — buys and sells it regularly to gain profit — tax officials can take that as speculative business. While not all speculative businesses may be strictly legal, income tax can only report these transactions to authorities, like the police or Enforcement Directorate.
"The income tax department may consider trading of Bitcoins... as capital gains or speculative income. Speculative business income would attract about 30 per cent tax. Such speculative loss from Bitcoin... cannot be adjusted against nonspeculative income but can be adjusted against gains in other speculative assets," said Amit Maheshwari, Partner, Ashok Maheshwary & Associates LLP.